Discrimination and Disparate Impact of High School Diploma Requirement for Learning Disabled Discussed in EEOC Letter

The U.S. Equal Employment Opportunity Commission (EEOC) Office of Legal Counsel recently wrote an informal discussion letter in response to an inquiry from a member of the public asking whether the Americans with Disabilities Act (ADA), as amended by the ADA Amendments Act (ADAAA) of 2008, prohibited a state from requiring students with learning disabilities to take “Gateway tests” or “end-of-course assessments” in order to receive their full high school diplomas. This letter, which is intended to provide an informal discussion of the issue and does not constitute official EEOC opinion, is at: http://www.eeoc.gov/eeoc/foia/letters/2011/ada_qualification_standards.html.

In the letter titled ‘ADA: Qualification Standards; Disparate Impact,’ the EEOC – the agency of the U.S. Government that enforces federal laws prohibiting employment discrimination – responded to a statement that raised a concern under Title I of the ADA, 42 U.S.C. §§ 12101 et seq. and pointed out that “some individuals cannot obtain a high school diploma, and therefore cannot obtain jobs requiring a high school diploma, because their learning disabilities caused them to perform inadequately on the end-of-course assessment.”

The EEOC letter stated: “Under the ADA, a qualification standard, test, or other selection criterion, such as a high school diploma requirement, that screens out an individual or a class of individuals on the basis of a disability must be job related for the position in question and consistent with business necessity. A qualification standard is job related and consistent with business necessity if it accurately measures the ability to perform the job’s essential functions (i.e. its fundamental duties). Even where a challenged qualification standard, test, or other selection criterion is job related and consistent with business necessity, if it screens out an individual on the basis of disability, an employer must also demonstrate that the standard or criterion cannot be met, and the job cannot be performed, with a reasonable accommodation. See 42 U.S.C. § 12112(b)(6); 29 C.F.R. §§ 1630.10, 1630.15(b) and (c); 29 C.F.R. pt. 1630, app §§ 1630.10, 1630.15(b) and (c).”

The EEOC continued to say in the letter that if an employer adopts a high school diploma requirement for a job, and that requirement “screens out” an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of “disability,” the employer may not apply the standard unless it can demonstrate that the high school diploma requirement is job related and consistent with business necessity. As an example, the EEOC said an employer will not be able to make this showing if the functions in question can easily be performed by someone who does not have a high school diploma. In addition, even if the high school diploma requirement is job related and consistent with business necessity, the employer may still have to determine whether a particular applicant whose learning disability prevents him from meeting it can perform the essential functions of the job, with or without a reasonable accommodation.